#19710 - 12. Bpc Civil Litigation 2023 2024 Disclosure And Inspection - BPC Civil Litigation

• A party discloses a document by stating that the document exists or has existed. It is essentially a list.

• A party to whom a document has been disclosed has the right to inspect it, except where:

  • The document is no longer in control of the party who disclosed it;

  • The party disclosing the document has a right or a duty to withhold inspection of it; or

  • It is disproportionate (must state why this is so).

Disclosure:

• An order for disclosure is an order to give standard disclosure unless the court directs otherwise.

• The court may dispense with or limit standard disclosure.

• The parties may agree in writing to dispense with or to limit standard disclosure.

• Not less than 14 days before the first CCMC, each party must file and serve a report verified by a statement of truth which:

  • Describes the relevant documents that exist or may exist;

  • Described where those documents are;

  • In the case of electronic documents, how they are stored;

  • Estimates a broad range of costs that could be involved in giving standard disclosure (including the cost for disclosing electronically stored documents); and

  • States which direction is sought.

    • An order dispensing with disclosure;

      • (This may be made if both parties would already have seen all the documents, e.g in a professional negligence case)

    • An order that a party discloses the documents on which it relied, and at the same time requests specific disclosure from any other party;

    • An order that directs disclosure on an issue by issue basis;

    • An order than each party disclose what is reasonable to suppose may contain information which enables that party to advance it own case or to damage that of any other part;

    • An order for standard disclosure; or

    • Any other order it considers appropriate.

• Not less than 7 days before the first CCMC, and on any other occasion the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure.

• If the parties agree to a proposal and the court considers it appropriate, it may be approved without a hearing and the court will give directions in the terms proposed.

• The court may direct how disclosure is to be given:

  • What searches are to be undertaken and in what time period;

  • Whether lists of documents are required;

  • How and when the disclosure statement is to be given;

  • In what format documents are to be disclosed;

  • What is required in relation to a document that no longer exists; and

  • Whether disclosure shall take place in stages.

Standard disclosure:

• Standard disclosure requires a party to disclose only:

  • The documents on which he relies; and

  • The documents which:

    • Adversely affect his own case;

    • Adversely affect another party’s case; or

    • Support another party’s case; and

  • The documents which he is required to disclose by a relevant practice direction.

• Documents relevant to quantum are disclosable when it is in issue. Documents relating to an insurance position of a party are not normally relevant and so not disclosable, but there are exceptions to this. Train of inquiry documents have traditionally been potentially disclosable in cases involving allegations of fraud, dishonesty or misrepresentation. But this would take place after standard disclosure.

• Redaction of irrelevant material from disclosed documents is permissible.

• The list will be in Form N265. Documents should be listed in date order, numbered and with a concise description.

Procedure for standard disclosure:

• Each party serves a list which indicates:

  • Documents to disclose;

  • Those in which the party claims a right or duty to withhold inspection; and

  • Those which are no longer in the party’s control and what has happened to those documents.

• Must include a disclosure statement certifying:

  • The extent of search;

  • Understood the duty to disclose; and

  • That to the best of his knowledge he has carried out that duty.

• Where the party making the disclosure is a company or firm, the statement must also identify the person making the statement and explain why he is considered an appropriate person to make the statement.

  • Proceedings for contempt of court may be brought against a person if he makes, or causes to make, a false disclosure statement, without honest belief in its truth.

• The parties may agree in writing to disclose documents without making a list and to disclose documents without making a disclosure statement.

Continuing duty:

• Any duty of disclosure continues until the proceedings are concluded.

• If documents to which that duty extends come to a party’s notice at any time during proceedings, he must immediately notify every other party.

Search duty:

• A party is required to make a reasonable search for the documents. Factors include:

  • The number of documents involved;

  • The nature and complexity of proceedings;

  • The ease and expense of retrieval of any particular document; and

  • The significance of any document which is likely to be located during the search.

• Where searching would be unreasonable, he must state this in the disclosure statement and identify the category or class of document.

Documents which have been in a party’s control:

• A party’s duty to disclose documents is limited to documents which are or have been in his control:

  • Physical possession;

  • Right to possession; or

  • Has or has had a right to inspect or take copies.

Disclosure of copies:

• A party need not disclose more than one copy of a document.

• A copy which contains a mark or modification which requires disclosure is treated as a separate document.

Meaning of a document:

• Anything in which information is recorded.

Legal professional privilege:

• This is the substantive right of the client to refuse inspection. It must still be included on the disclosure list but it must say it is privileged.

• Legal professional privilege is not subject to the balancing test with public interest. The privilege is, in general, absolute: survives the clients death or company dissolution.

• Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court. Even if it can be shown to be relevant, this is still at the court’s discretion.

• The lawyer should get permission from a client in advance for revealing anything protected by legal professional privilege in the ADR process. Communication for ADR is unlikely to attract legal professional privilege.

Legal advice privilege:

• The test is whether the document is made confidentially for the purposes of legal advice.

• Extent of privilege:

  • Communications for the purpose of keeping a client informed about the advice will be privileged.

  • Communications which include documents which evidence the substance of the advice will also be covered.

  • The privilege extends to information which the solicitor received in a professional capacity from a third party which they convey to their client.

  • Communication with foreign lawyers is covered.

Litigation privilege:

• Communication that comes into existence after litigation is contemplated or commenced with a view to such litigation is privileged.

• Excluded from privilege:

  • Non-professional agent communicated with the solicitor;

  • Surveyor’s report; or

  • The identity of the client.

• Documents embodying communications with a third party are privileged only if coming into existence for the purpose of obtaining legal advice in existing or anticipated proceedings.

• If an original or copy of a document is obtained for litigation, it is privileged, this extends to copies, translations and markings on documents which are otherwise not privileged.

Waiver or loss of privilege:

• The privilege is that of the client and may only be waived by the client, not the solicitor or legal adviser.

• Disclosure for limited purposes does not constitute a general waiver of privilege. Nor does it being referred to in a witness statement, statement of case, xx etc.

  • If part of a document is put in evidence, or read to the court, privilege will be waived for the whole document, unless the remaining part deals with an entirely different subject-matter.

• Privilege will only be waived if the document is put in evidence and read to the court.

• Privilege will be waived if the client commences professional negligence proceedings against their solicitor.

Without prejudice communications:

• The rule applies to exclude all negotiations genuinely aimed at settlement, whether oral or in writing, from being given in evidence.

• This rule is not absolute.

• If one party to negotiations on a without prejudice basis wishes to change the basis thenceforth to an open one, the burden is on that party to bring the change to the attention of the other party and to establish on an objective basis that the recipient would have realised that a change in basis of negotiation was being made.

• A party may inspect a document mentioned in –

  • A statement of case;

  • A witness statement;

  • A witness summary; or

  • An affidavit.

• A party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings.

Inspection and copying of documents:

• Where a party has a right to inspect a documents:

  • That party must give the party who disclosed the document written notice of his wish to inspect it;

  • The party who disclosed the document must permit inspection not more than 7 days after the date on which he received notice; and

  • That party may request a copy...